SAILESH CHANDRA CHAKRABORTTI Vs. SASHI COOMAR BANERJEE

JUDGEMENT

(1.) A short question of law raised in this appeal is, whether the provisions of sections 24 and 25 of the Calcutta Thika Tenancy Act, 1949 (hereinafter referred to as the Act) read with section 31 thereof, in the light of the pro visions of section 116 of the Transfer of property Act, impose a bar on the landlord from realising the enhanced rate of rent from a thika tenant even though he agrees to pay the enhanced rate of rent. In the instant case, the tenancy commences from February 1, 1950 for a period of 5 years founded on a registered lease. The rent in the shares of the respondent landlord is Rs. 13/2/ -per month (total rent being Rs. 15/- ). The lease provides that on its expiry after 5 years, the appellant would be entitled to take a fresh lease for a further period of 5 years at a rental of Rs. 20/ - per month. Rs. 17/8/ - per month falls in the share of the plain tiffs. The suit was brought for realisation of the arrears of rent, at the said enhanced rate of Rs, 17/8/ - per month from January, 1955. The said bar of enhancement was pleaded in de fence, which was not accepted by both the Courts below. The result is the instant appeal sections 24, 25 and 31 of the Thika Tenancy Act, 1949 read as follows: "24: The rent of a thika tenant shall not be enhanced except as provided in this Act,''

(2.) ON the construction of the said provisions, it seems to me that they do not impose an absolute bar in all cases on the landlord to the realisation of the enhanced rate of rent. The condition precedent for the application of the said provisions of the said sections of the Act is, in my view, either the continuance of the tenancy itself which must be existing or the acquisition of the tenancy right by holding over, under the provisions of section 116 of the Transfer of Property Act. Where there is neither (as in the instant case), there can be no bar on the erstwhile landlord for realisation of the rate of rent agreed to by and between the par ties though such rate of rent might be higher than the rate of rent paid during the currency of the lease. In such cases the outgoing landlord is not bound other by the proviso to sub-section (1) of section 25 or by sub-section 2 of sec. 25 of the Act. The grounds in section 25 (1) of the Act, are also not binding on him in such cases. Strictly speaking, there cannot be an "enhancement" of the rate of rent in a case where the old lease has expired and where section 116 of T. P. Act is not attracted. Really, there does not exist the old rate of rent. Instead, a new rate of rent on a fresh agreement, though incorporated in the old lease, has come into existence. It will be in effect a fresh lease and a new tenancy and consequently the said three sections viz. , sections 24, 25 and 31 of the Thika Tenancy Act, 1949 cannot be attracted to such a case. The fresh lease, would on the same principle, be also not void under section 31 of the Act. In a Bench decision of this Court in the case of (1) Jojneswar Majumdar v. Panchanan Porey, 67 C. W. N. 456 it has been held by S. K. Sen, J. on be half of himself and Niyogi, J. that section 31 of the Act does not make the lease altogether void, and his Lordship continued to observe further (at p. 458) "although it might affect the terms contained therein as to the enhancement of rent in the case of renewal of tenancy". If it is meant thereby that it includes the renewal of tenancy even when the terms as to the rate of rent vary, then it goes against his Lord ship's (S. K. Sen, J.) own decision, in the unreported case of (2) Sital Prosad v. Sashi Kumar, (S. A. 1045/1954) where it was held that the question of enhancement arises only when the same tenancy continues. Moreover, the said observation in (1) Jojneswar's case is not only very general but also obiter.

(3.) TO avail of the provisions of sections 24, 25 and 31 of the Act, Mr. Dutta, on behalf of the appellant, further con tended, that the definition of a Thika Tenant under section 2 (5) of the Act would include a tenant, whose lease has expired and therefore his client is still a thika tenant and as such he can take advantage of the bar of enhancement provided for in the said sections. To hold the same, in my view, is to overlook the provisions of section 3 (vi) of the Act. where the expiry of the registered lease has been made a ground for ejectment of a thika tenant. If, even after the expiry of the lease, the thika tenant continues as a thika tenant, the expiry could not be a ground for ejectment.